# Amicus Curiae Brief — Sheriff v. Gillie, 136 S. Ct. 614 (2015) (No. 15-338)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

No. 15-338
—

In the —— Court of - Gnited States

—s —— eer eae ee ee +

MARK J. SHERIFF, et al

Petitioners,
Vv.

PAMELA GILLIE AND HAZEL MEADOWS,
or.

~~ - oo —_--- wee ewe oe ee

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

— ee ee eee Cee a

BRIEF OF NATIONAL CONSUMER LAW CENTER,
NATIONAL ASSOCIATION OF CONSUMER
ADVOCATES, AND PUBLIC GOOD LAW CENTER AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS

eee eee ae ae ee CUO

RICHARD J. RUBIN DEEPAK GUPTA
1300 Canyon Road Counsel of Record
Santa Fe, NM 87501 JONATHAN F.. TAYLOR
505) 983-4418 NEIL K, SAWHNEY
GUPTA WESSLER PLLC

1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
decpak@guptawessler.com

Counsel for Amici Curiae

March 2, 2016

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TABLE OF CONTENTS
a ie tteeninenictnncentensininnniininnncnmmereenenindinn il
Introduction and summary of argument.....................00+++ 1
eT IIIT Unrnicrncitopnnieniecesiuaiinanntninepeniiesbiniusidil 2
TENET are TENET T 3
ei ccisiesitsahiceniiaitindeianniiiceiittaalataiaiiesieasiiiaailiaiidiaaaieinniaal 4
I. Because the petitioners committed per se
violations of the FDCPA, this Court need
not address whether materiality may be
required under different circumstances. ................. 4
II. This Court should not entertain the
petitioners’ proposal to adopt a new
I rine cccracissiestsalitrintietnltetenaianiiat 7
i arccnennrsinteasvinainntinnssnaianiniganatasainipaeieiniateniias 13

ii-
TABLE OF AUTHORITIES
Cases

Adarand Constructors, Inc. v. Mineta,
8 ERTS SAS aC NTO

Avila v. Rubin,
84 FBd 222 (Tth Cir. 1996) .............cccereeserceeessssencscesenenes

Campuzano—Burgos v. Midland Credit

Mangement, Inc.,
A 10

City & County of San Francisco v. Sheehan,
ee as MITT scscoirsicenicinitieneserlicastadancnpabiicpsccininintctael

Clark v. Capital Credit & Collection Services,
Inc.,
460 F.3d 1162 (Sth Cir. 2006) ..............0cccccccccccccscecseeess 10

Clomon v. Jackson,
988 F.2d 1314 (2d Cir. 19938)...............c.ccccccccccseseseeees 8, 10

Evory v. RJM Acquisitions Funding L.L.C.,
ee ae Se Gh Ce cceceenrencsnerntatninscrnaninccsenntated

Gammon v. GC Services Limited Partnership,
pe fe 10

Gonzales v. Arrow Financial Services, LLC,
GBD FD 1665 (Othe Clr. BRAT) .nncccecccccesccecceseccscccccssccssecees

Grden v. Leikin Ingber & Winters PC,
es ee a rerrrctcnneccnennstctnnrernncntmnseeneennts

Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich LPA,
ERE ee EE 2,12

-jii-

Jeter v. Credit Bureau, Inc.,

760 F.2d 1168 (11th Cir. 1985) .00..... ccc eeeeeenees 9,10
LeBlanc v. Unifund CCR Partners,

601 F.3d 1185 (11th Cir. 2010)... eee 10
Peters v. General Service Bureau, Inc.,

og gL 10
Pollard v. Law Office of Mandy L. Spaulding,

766 F.2d GB (lat Cir. 2014)................0000..ccccccecceeeesss0 9,10
Smith v. Transworld Systems, Inc.,

ee I BI cccccrnicsencsicttariticieniitiniantintannen 10
Taylor v. Perrin, Landry, deLaunay & Durand,

Se II, CIE cnnierscisntisinncntinnsinnitnennssoneteinl 10
United States v. National Financial Services,

Inc.,

I i tec 10
United States v. Wells,

ET ae ee nea REED eR 5
United States v. Williams,

EE nee eee 8
Warren v. Sessoms & Rogers P.A.,

eT 6
Wilson v. Quadramed Corp.,

eee: 9
Statutes
EEE Ne See ae oe eee NE 10

I hn cierincnciahirceeshneeeinsitetiiiuaniedel passim

ee 3,4
es Oe SN eisecsesiniiciessesicninniiceiiihdenetaiiecii 3,4
Rules

Seah Hs. Cali ieciisbncinseteinieinenitnsionpetencnenisansaianieiciicininemeiniasinameniii 9
Legislative Materials

Be A i EE caniniierciresitanienicninniennienseinemnnigiiaienninnen 12
Other authorities

Karl Boedecker & Laurie Lucas, Consumer
Behavior and the Regulation of Consumer
Financial Services, Economics, Law, and

International Business, Paper 2 (2009)............

Jeffrey Dinwoodie, /gnorance Is Not Bliss:
Financial Illiteracy, the Mortgage Market
Collapse, and the Global Economic Crisis, 18

U. Miami Bus. L. Rev. 181 (2010) .....................

Government Accountability Office, Credit Cards:
Increased Complexity in Rates and Fees
Heightens Need for More Effective
Disclosure to Consumers, GAO-06-929 (2006)

George Lowenstein, Cass Sunstein & Russell
Golman, Disclosure: Psychology Changes
Everything, Annual Rev. of Econ. (Harvard
Pub. Law Working Paper No. 13-30 Aug. 18,

Annamaria Lusardi & Olivia Mitchell, Financial
Literacy and Retirement Preparedness:
Evidence and Implications for Financial

Education, 42 Bus. Econ. 35 (Jan. 2007)..........

-V-

Annamaria Lusardi & Peter Tufano, Debt
Literacy, Financial Experiences, and
Overindebtedness, Nat’] Bureau of Econ.
I 11, 12

Alan White & Cathy Lesser Mansfield, Literacy
and Contract, 13 Stan. L. & Pol’y Rev. 233

-]-
INTRODUCTION AND SUMMARY OF ARGUMENT

This brief, by three consumer-advocacy groups, ad-
dresses the second question presented: whether private
debt collectors enlisted by Ohio’s Attorney General as
“collections special counsel” violated the Fair Debt Col-
lection Practices Act by sending collection letters to Ohio
consumers on Attorney General letterhead.’

If the Court reaches this question, it should decline
the petitioners’ invitation to create an extratextual “ma-
teriality” requirement. That issue is not implicated here:
The letters constituted per se violations of two specific
FDCPA prohibitions. Congress expressly concluded that
this conduct “is a violation” of the FDCPA. 15 U.S.C.
§ 1692e. The Court therefore need not address whether
materiality might be required in a different, hypothetical
case.

The Court should also decline to entertain the peti-
tioners’ proposal to adopt an “average consumer” stand-
ard—an argument neither presented nor passed on
below, nor even mentioned in the petition for certiorari.
The petitioners give no content to their proposed stand-
ard, which has not been adopted by any court. Over the
last three decades, the lower courts have consistently
employed a “least-sophisticated consumer” standard in
FDCPA cases. There is no reason for this Court to de-
part from that settled consensus now. Quite the contra-
ry: Given the empirical evidence showing low financial-
literacy levels among U.S. consumers, ensuring the
continued use of the least-sophisticated-consumer stand-
ard is essential to vindicating the Act’s purposes.

‘ All parties consent to this brief, and no party’s counsel au-
thored it in whole or part. Apart from amici, no person contributed
money to fund its preparation or submission.

-2-
INTEREST OF AMICI CURIAE

National Consumer Law Center (NCLC) is a non-
profit research and advocacy organization focusing on
the legal needs of consumers—especially low-income and
elderly consumers. For over 45 years, NCLC has been
the consumer-law resource center to which state and
federal consumer-protection officials, advocates, public
policy makers, reporters, and community groups have
turned for legal answers, policy analysis, and technical
and legal support. NCLC is recognized nationally as an
expert in fair-debt-collection issues and is the author of
Fair Debt Collection (8th ed. 2014), a comprehensive
treatise on which this Court has relied. See Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559
U.S. 578, 591 n.12 (2010).

National Association of Consumer Advocates
(NACA) is a nonprofit corporation whose members are
lawyers, law professors, and students whose practice or
area of study involves consumer protection. NACA’s
mission is to promote justice for consumers by maintain-
ing a forum for information sharing among consumer
advocates and to serve as a voice for its members and
consumers in the struggle to curb unfair and oppressive
business practices. Compliance with the FDCPA has
been a continuing focus of NACA since its inception.

Public Good Law Center is a public-interest organ-
ization dedicated to the proposition that all are equal
before the law. Through amicus participation in cases of
particular significance for consumer protection and civil
rights, Public Good seeks to ensure that the law remains
available to everyone. Public Good has been particularly
involved in cases involving unfair debt-collection practic-
es, including instances of deceptive use of the trappings
of government agencies.

-3-
STATEMENT

Respondents Pamela Gillie and Hazel Meadows re-
ceived similar debt-collection letters, which bore the
State of Ohio’s seal and represented that they were from
the Office of the Ohio Attorney General. They were both
“alarmed” by these letters; Meadows in particular was
“seared = that the Ohio Attorney General might charge
[her] with a crime for not paying what he said [she]
owed.” JA 43-45, 139. But the letters had actually been
sent by special counsel—private lawyers that the State
of Ohio enlists to collect debts. See Pet. App. 22a—26a.

Gillie and Meadows brought a putative class action
against the special counsel, alleging that their use of
Attorney General letterhead violated specific prohibi-
tions set forth in section 1692e of the FDCPA. In par-
ticular, they alleged that the letters violated the Act’s
prohibitions on “[tJhe use or distribution of any written
communication which simulates or is falsely represented
to be a document authorized, issued, or approved by any
court, official, or agency of the United States or any
State, or which creates a false impression as to its
source, authorization, or approval,” 15 U.S.C. § 1692e(9);
and “[t]he use of any business, company, or organization
name other than the true name of the debt collector’s
business, company, or organization,” id. § 1692e(14).

Holding that they were not “debt collectors” under
the FDCPA, the district court granted special counsel’s
motion for summary judgment. In the alternative, the
court concluded that the letters did not violate section
1692e because “the least sophisticated consumer would
not be materially misled.” Pet. App. 96a.

The Sixth Circuit reversed on both grounds. With
respect to liability under section 1692e, the Sixth Circuit
(like the district court) asked whether “the least sophis-
ticated consumer” would be confused by the letters. Pet.

-4-

App. 48a. Noting that “[t]he use of the letterhead has no
apparent purpose beyond misleading a consumer into
believing it is the Attorney General who is collecting on
the account,” the court held that “a jury could reasonably
find that special counsel’s use of the letterhead is confus-
ing; and therefore a violation of § 1692e.” Pet. App. 46a,
54a. The Sixth Circuit remanded the case for a jury trial.

ARGUMENT

I. Because the petitioners committed per se
violations of the FDCPA, this Court need not
address whether materiality may be required
under different circumstances.

The respondents allege that special counsel’s use of
Attorney General letterhead violated two provisions of
the FDCPA: section 1692e(9)’s prohibition against send-
ing a communication that “simulates a document
issued” by “any State” or “creates a false impression as
to its source,” and section 1692e(14)’s requirement that a
communication use only “the true name of the debt col-
lector’s business.” There is enough evidence in the rec-
ord for a jury to agree. As the Sixth Circuit observed,
“({t]here is no compelling reason for special counsel to use
the [Attorney General] letterhead, other than to misrep-
resent their authority and place pressure on those indi-
viduals receiving the letters.” Pet. App. 45a. And the
petitioners themselves have all but conceded that the
letters violate both subsections’ plain terms. See Resp.
Br. 40-47. That should be the end of the analysis: Under
the FDCPA, a violation of either subsection constitutes
“a violation of [section 1692e].” 15 U.S.C. § 1692e.

Eschewing this straightforward analysis, the peti-
tioners ask the Court to write into the statute an addi-
tional requirement that is nowhere to be found in the

text. To establish a section 1692e violation, they contend,
it is not enough for plaintiffs to prove that the defendant

5-

engaged in conduct that Congress said “is a violation of”
the statute. /d. They must also prove that the communi-
cations were “materially misleading.” Pet. Br. 39; see
also id. at 43-44. The petitioners derive this asserted
materiality requirement from section 1692e’s general
catch-all provision: that “{a] debt collector may not use
any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15
U.S.C. § 1692e. On their reading, the “false, deceptive, or
misleading” language incorporates a background princi-
ple of materiality that extends to cover other provisions
beyond the catch-all, including those that Congress
deemed per se violations of the statute. Pet. Br. 39, 43.

This Court should reject that reading. For starters,
it is doubtful that Congress intended to silently import
into the FDCPA any common-law concept of materiality,
even with respect to the catch-all provision. As this
Court has cautioned, when a statute does not “so much
as mention materiality’—as is the case with the
FDCPA—“a natural reading of the full text” suggests
that “materiality would not be an element.” United
States v. Wells, 519 U.S. 482, 490 (1997). Absent clear
evidence to the contrary, this Court should refrain from
injecting an extratextual materiality requirement into
the statute. See also Resp. Br. 50-51.

In any event, whether Congress intended to cabin
the general catch-all provision by an unexpressed mate-
riality requirement is not at issue here. The respondents
allege that special counsel violated the law’s specific
prohibitions set forth in subsections (9) and (14)—not the
catch-all provision. And Congress expressly concluded
that any conduct described in those subsections “is a
violation of this section.” 15 U.S.C. § 1692e. Congress did
not mention materiality in either subsection, directly or
indirectly, and the petitioners do not contend that it did.

4.

Instead, they make an appeal to the congressional
policies behind the Act, arguing (at 43) that “[a) materi-
ality element furthers the Act’s purposes” by protecting
“conscientious debt collectors” from liability. But, by
spelling out specific conduct as per se unlawful, Congress
determined that this conduct—including the conduct
specified in subsections (9) and (14)—is necessarily
harmful to consumers. Put differently, debt collectors
who engage in such practices are, in Congress’s judg-
ment, inherently not “conscientious.”

The question here, then, is whether the allegedly un-
lawful conduct matches that proscribed by subsection (9)
or (14). If so, the petitioners have violated the FDCPA.
That is true irrespective of whether the Act’s catch-all
language is limited by a materiality requirement. So this
Court need not—and therefore should not—decide the
hypothetical question whether materiality would be
required in a different case. It should instead hold that a
per se violation is what Congress said it is: “a violation of
this section.” 15 U.S.C. § 1692e; see Warren v. Sessoms
& Rogers P.A., 676 F.3d 365, 374 (4th Cir. 2012)
(“(W]hether a materiality requirement attaches to other
violations of § 1692e has no impact on [the plaintiffs’]
allegations that the defendants violated [a specific sub-
section of § 1692e].”), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016).

Contrary to the petitioners’ claim, a plain-text read-
ing would not allow the FDCPA to reach “any technical
falsehood.” Pet. Br. 44. Unlike the petitioners’ proposed
“materiality” requirement, the Act already contains an
express limitation on liability, demanding that any repre-
sentation be made “in connection with the collection of
any debt.” 15 U.S.C. § 1692e. Courts have held that this
language restricts liability to those communications that
have the “animating purpose” of “induc[ing] payment by
the debtor” or that “aim[] to make a [debt-collection]

7.

attempt more likely to succeed.” Grden v. Leikin Ingber
& Winters PC, 643 F.3d 169, 173 (6th Cir. 2011). Given
this language—and the specific language that Congress
used in crafting the per se violations—there is simply no
need for this Court, in this case, to judicially impose an
extratextual limitation for policy reasons.

II. This Court should not entertain the petitioners’
proposal to adopt a new “average consumer” test.

A. The petitioners not only seek the creation of a
new materiality requirement, they also ask this Court to
adopt a new liability standard for deceptive conduct
under the Act—their so-called “average consumer” test.
Pet. Br. 41. The Court should decline the request. The
petitioners appear to have invented that test only after
this Court granted certiorari. They did not mention it in
their petition or reply brief, nor did they discuss it in
their briefing below. And neither the panel opinion nor
the dissent says anything about such a test.

Indeed, in seeking certiorari, the petitioners urged
this Court to resolve an asserted “circuit split” that had
(in their words) created “conflicting tests for assessing
whether debtors would find a statement misleading: the
‘least sophisticated consumer’ test and the ‘unsophisti-
cated consumer’ test.” Pet. for Cert. 24; Reply 10. To
induce this Court to grant review, the petitioners sig-
naled that they were prepared to advocate for the second
test, arguing that, under that test, the letters are not
misleading. Pet. for Cert. 28.

Now that this Court has granted certiorari, the peti-
tioners instead purport to advance a third test: “one
asking whether an average consumer” in the relevant
market would be misled. Pet. Br. 41. But the only case
the petitioners cite to support their test does no such
thing. Specifically, that case says that the standard fo-
cuses on “the average consumer in the lowest quartile

-8-

(or some other substantial bottom fraction) of consumer
competence.” Evory v. RJM Acquisitions Funding
L.L.C., 505 F.3d 769, 774 (7th Cir. 2007) (emphasis add-
ed). The standard, in other words, focuses on “consumers
of below-average sophistication.” Clomon v. Jackson, 988
F.2d 1314, 1319 (2d Cir. 1993). No circuit has held other-
wise.

The petitioners do not flesh out the contours of their
proposed test, but under any plausible iteration it should
be rejected here. On the one hand, if the “average con-
sumer” test sets a meaningfully higher bar than the tests
argued below, the petitioners have waived the argument.
‘(This is a court of final review and not first view.”
Adarand Constructors, Inc. v. Mineta, 534 U.S. 108, 110
(2001) (per curiam). It “does not ordinarily decide ques-
tions that were not passed on below.” City & Cnty. of
S.F v. Sheehan, 135 S. Ct. 1765, 1773 (2015); see also
United States v. Williams, 504 U.S. 36, 41 (1992). Doing
so in this case would be especially inappropriate because
the precise liability standard is irrelevant: The respond-
ents are not relying on the catch-all provision. And even
if determining whether a letter “creates a false impres-
sion as to its source” (under subsection (9)) were to re-
quire the application of a liability standard, determining
whether the debt collector used a “name other than [its]
true name” (under subsection (14)) does not.

If, on the other hand, the petitioners’ “average con-
sumer” test is not meaningfully different from the stand-
ards argued below, then they are simply playing a “se-
mantics game.” Pet. for Cert. 27. Although they ask this
Court to “reject” the least-sophisticated-consumer
standard, complaining that it “misleads” and “lacks any
historical pedigree,” they do not identify what exactly is
wrong with how the standard is applied by lower courts.
Pet. Br. 42. To the contrary, they concede that the
standard “reject{s] liability ‘for bizarre or idiosyncratic

9.

interpretations.” Jd. (quoting Wilson v. Quadramed
Corp., 225 F.3d 350, 354-55 (3d Cir. 2000)). And even the
courts that have adopted the unsophisticated-consumer
test (rather than the least-sophisticated-consumer test)
have acknowledged that the difference between the two
formulations is merely one of “[lJabels,” Pollard v. Law
Office of Mandy L. Spaulding, 766 F.3d 98, 103 n.4 (1st
Cir. 2014), with no “practical difference in application,”
Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996); see also
Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061
n.2 (9th Cir. 2011) (noting that the two tests differ “only
in semantics”).

Once the semantics are set aside, the petitioners’ po-
sition is exposed as nothing more than a factbound, case-
specific plea for this Court to address an alleged “misap-
plication of a properly stated rule of law.” Sup. Ct. R. 10.
Had that been made clear in the petition, this Court may
well have denied review on the second question. But as it
is, the Court should make clear (if it reaches the issue)
that liability under the FDCPA is assessed from the
standpoint of the “unsophisticated” or “least sophisticat-
ed” consumer—not the average consumer.

B. For more than 30 years, the lower courts have
consistently held that the relevant standard under the
FDCPA takes the perspective of an unsophisticated or
least-sophisticated consumer. See Jeter v. Credit Bu-
reau, Inc., 760 F.2d 1168 (11th Cir. 1985). This standard
“protects all consumers, the gullible as well as the
shrewd _ the ignorant, the unthinking and the credu-
lous.” Clark v. Capital Credit & Collection Servs., Inc.,
460 F.3d 1162, 1171 (9th Cir. 2006). It “does not rely on
assumptions about the ‘average’ or ‘normal’ consumer.”
Clomon, 988 F.2d at 1319.

-10-

Today, that is the rule in every circuit.’ And for good
reason: When Congress enacted the FDCPA, it did so
because it found that “[e]xisting laws and procedures”
were “inadequate to protect consumers.” 15 U.S.C.
§ 1692(b). As the Eleventh Circuit long ago explained,
“{iJt would be anomalous for the Congress, in light of its
belief that existing state and federal law was inadequate
to protect consumers, to have intended that the legal
standard under the FDCPA be less protective of con-
sumers than under the existing ‘inadequate’ legislation.”
Jeter, 760 F.2d at 1173-74 (emphasis in original). Despite
multiple amendments to the FDCPA over the last few
decades, Congress has never acted to disturb this bed-
rock rule. This Court should not do so either.

The prevailing standard has not only proved worka-
ble over time but also reflects contemporary realities.
Nearly half of American consumers read at no more than
an eighth-grade level. Gov’t Accountability Office, Credit
Cards: Increased Complexity in Rates and Fees Height-
ens Need for More Effective Disclosure to Consumers,

* Most circuits use the “least sophisticated consumer” lan-
guage. See, e.g., Clomon, 988 F.2d at 1318-19 (2d Cir.); Campuzano-
Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 298 (3d Cir.
2008); United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 136-37
(4th Cir. 1996); Taylor v. Perrin, Landry, deLaunay & Durand, 103
F.3d 1232, 1236 (5th Cir. 1997); Smith v. Transworld Sys., Inc., 953
F.2d 1025, 1028 (6th Cir. 1992); Clark, 460 F.3d at 1171 (9th Cir.);
LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193 (11th Cir.
2010). The First, Seventh, and Eighth Circuits use the “unsophisti-
cated consumer” language. Pollard, 766 F 3d at 103-04 (lst Cir.);
Gammon v. GC Servs. Lid. P’ship, 27 F.3d 1254, 1257 (7th Cir.
1994); Peters v. Gen. Serv. Bureau, Inc., 277 F.3d 1051, 1055 (8th
Cir. 2002). However labeled, these standards are “designed to
protect consumers of below average sophistication or intelligence,”
while still “contain{ing] an objective element of reasonableness.”
Peters, 277 F.3d 1051 at 1055.

-1}-

GAO-06-929, at 38 (2006); see also Lowenstein, Sunstein
& Golman, Disclosure: Psychology Changes Everything,
Annual Rev. of Econ. 21-29 (Harvard Pub. Law Working
Paper No. 13-30 Aug. 18, 2013). And “research measur-
ing the literacy of the U.S. population demonstrates that
even consumers who might take the time and trouble to
‘read’ contemporary consumer contract documents are
unlikely to understand them.” White & Mansfield, Liter-
acy and Contract, 13 Stan. L. & Pol’y Rev. 233, 234
(2002). Indeed, some studies have found that “about half
of the American adult population could not be expected
to consistently extract information from lists, forms,
tables, and similar documents __[that] are less complex
than many modern consumer contract forms.” /d. at 237.

These basic deficiencies are magnified in the con-
sumer-finance context, because “(t]he evidence indicates
that financial literacy levels among U.S. consumers are
low.” Boedecker & Lucas, Consumer Behavior and the
Regulation of Consumer Financial Services, Economics,
Law, and International Business, Paper 2 (2009),
http://repository.usfca.edu/elib/2/, at 20.° A National
Bureau of Economic Research study, for example, found
“strikingly low levels of debt literacy across the U.S.
population”; only one-third of respondents could answer
basic questions measuring financial knowledge related to
debt. Lusardi & Tufano, Debt Literacy, Financial Expe-
riences, and Overindebtedness, Nat’] Bureau of Econ.

* See also Dinwoodie, [gnorance Is Not Bliss: Financial IIlit-
eracy, the Mortgage Market Collapse, and the Global Economic
Crisis, 18 U. Miami Bus. L. Rev. 181, 184-85 (2010); Lusardi &
Mitchell, Financial Literacy and Retirement Preparedness: Evi-
dence and Implications for Financial Education, 42 Bus. Econ. 35,
36-37 (Jan. 2007) (“{A}ctual financial knowledge was sorely deficient
for both high school students and working-age adults.”).

-12-

Res. (March 2009), http:/Awww.nber.org/papers/w14808,
at 1, 5-8. Yet many groups, “like the elderly, think they
know considerably more than they actually do,” which
“may help explain the incidence of financial frauds per-
petuated against [them).” /d. at 24. The evidence, the
authors concluded, “provides some reason for concern in
an economy in which consumers routinely borrow and
save using debt-like instruments.” /d. at 8.

In light of this empirical evidence, the Court should
refrain from disturbing the settled consensus on the
least-sophisticated-consumer standard. When it enacted
the FDCPA, Congress was aware that private debt
collectors—who are typically paid on commission—have
every incentive to exploit consumers’ deficiencies by
“press[ing] the boundaries of the Act’s prohibitions on
collection techniques.” Jerman, 559 U.S. at 602; see also
S. Rep. No. 95-382, at 2. Departing from the standard
that has prevailed for the last 30 years, as the petitioners
propose, would only encourage debt collectors to press
those boundaries further still—the very opposite of what
Congress intended.

-13-
CONCLUSION

The Court should affirm the decision below.

March 2, 2016

Respectfully submitted,

DEEPAK GUPTA

Counsel of Record
JONATHAN E. TAYLOR
NEIL K. SAWHNEY
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
deepak@guptawessler.com

RICHARD J. RUBIN
1300 Canyon Road
Santa Fe, NM 87501
(505) 983-4418

Counsel for Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0614%3A16. Public record. Not legal advice.